FauxPolitik

Friday, March 19, 2004

You don't let me have any fun: To be serious, I think that judges should make the first call whether they should recuse themselves. Usually, the issue is pretty self-evident, and most judges use the "appearance of impropriety"-type test. There is nothing that says you can't sit in judgment of an acquaintance or professional colleague. You just shouldn't do it if your personal feelings for or against that person or party, or some financial interest, prevent you from being fair - whatever that means.

What I am barking about is that it's easy for Scalia to say all the papers have it all wrong "because I was there." Of course, if we let Martha Stewart decide her own case based on what she remembers having said or done (or not said or not done)...well, you see my point, even if facetiously made.

A Fair Point: But I think, Razor, that you are arguing spurious procedure rather than spurious logic. Scalia's point, as it is addressed in his memorandum, is that polling the editorial boards of the nation's leading papers is not an alternative procedure for deciding recusal. You can argue for changing the protocol if you like, and we can have the other eight justices decide for Scalia instead. Oh, but doesn't he occasionally have drinks with the Chief? Didn't he play handball with Ruthie B. last month? (It's so funny to see them playing in their robes.) Didn't Kennedy and Scalia once share a cold-water walk-up in their Haight-Ashbury days? Maybe we should let the press decide. They are the "fourth estate," after all. Says so right in Article . . . um . . .

Hell, maybe we should let the guy who dishes the slop in the Supreme Court cafeteria make the call.

Recuse moi!: I concur that Sierra is out of its politically correct organic gourd in proposing that he recuse himself based on the strength of editorial outcry. However...

Let's look at how most judicial determinations are made: usually you have two sides that make allegations and then strive to drum up evidence to support same. Then, the law is applied to the facts as appropriate to reach a legal conclusion on who wins. This decision is made either by a judge, solely, or by the combination of a judge and jury, i.e. third parties who aren't supposed to have a dog in the fight.

In recusal matters, we perversely let the judge be not only the one who analyzes the facts and law, but the one who supplies the facts! So, he says: "No, the newspapers have it all wrong. Here's what really happened when I invited Dick Cheney to come hunting and then traded jokes with him all the way down to Loozeeanna in a private jet that the taxpayers were kind enough to provide. Based on these immutable facts, I conclude that in view of the law, I did nothing wrong." Tell me who's doling out spurious logic now?

See, if this were run differently (and admittedly, a recusal motion is not the same as a substantive motion for summary judgment, for example), you'd have the moving party taking depositions, collecting documents to support one's position (i.e. you depose the pilot, the stewardess, Cheney [assuming you can find his undisclosed location], and Scalia himself). Then you try to play mix-and-match with the testimony to find smoking guns and inconsistencies.

Anyway, you can rest assured Scalia is telling you all you need to know. I mean, we know those dead animals ain't talking.

Scalia's Recusal Refusal: Want to read an absolute workout? Here's Scalia denying the Sierra Club's request that he recuse himself from the case involving Cheney and the Energy Task Force (over the now-famous duck hunting trip).

The core of Sierra Club’s argument is as follows:

“Sierra Club makes this motion because . . . damage [to the integrity of the system] is being done right now. As of today, 8 of the 10 newspapers with the largest circulation in the United States, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside . . . . Of equal import, there is no counterbalance or controversy: not a single news-paper has argued against recusal. Because the American public, as reflected in the nation’s newspaper editorials, has unanimously concluded that there is an appearance of favoritism, any objective observer would be compelled to conclude that Justice Scalia’s impartiality has been questioned. These facts more than satisfy Section 455(a), which mandates recusal merely when a Justice’s impartiality ‘might reasonably be questioned.’” Motion to Recuse 3–4.

The implications of this argument are staggering. I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.

He goes on to point out, amusingly, how poorly those editorials grasp the facts -- never mind the law.

Pakistani forces have surrounded between 300 and 400 rebels, both foreign militants and their Pakistani tribal allies, in a fierce battle near the border with Afghanistan, the military said on Friday.

Pakistani troops pounded the besieged militants, who possibly include Osama bin Laden's second-in-command as well as many other al Qaeda fighters, for most of the day with artillery while helicopters attacked them from above.

They can't be giving much of a pounding, considering the story broke yesterday morning and today's reporting says the battle began Tuesday. How the hell long does it take to kill "between 300 and 400 rebels"?

Funny, he couldn't have even gotten an intern job today: J.J. Jackson, one of MTV's original "V.J.s" (remember those? Now MTV is like Clear Channel - you have no idea who is bringing you the music, when they actually show videos, that is), died yesterday of an apparent heart failure.

Take yourself back 23 years when MTV first started - I remember it clearly as I could only watch it at my grandparents' house as I didn't have cable yet. I loved that freakin' channel. I remember the V.J.s all hanging out and interviewing musicians with actual questions about their music and careers (as opposed to the TRL crap you see now where MTV brings in a hand-picked audience to scream over the latest lip-syncher). J.J. was 40 years old when he debuted on the channel. 40. Look at MTV today and you won't see anyone over 30 who's not Kurt Loder.

I suppose the channel is just giving the kids what they want, but wouldn't it be nice to be able to tune into the channel and see ground-breaking music as opposed to just what you hear on the pop stations on the radio?

Aw, Lay Off: Here's a brief paean I wrote to McPaper last year. I'm much more surprised to find bullshit getting into print in USA Today than in the Times, if only because McPaper has less of a crusader image. USA Today has solid reporters, is easy on the eye, and can be digested with the alacrity of a multivitamin chased with a glass of metamucil. In other words, it does what a paper should do. If I want opinion or "news analysis," I'll go to sources whose biases are declared. Furtive spin under the guise of much-trumpeted objectivity? No thanks.

I'm reminded of a radio spot I heard this morning, an advert for some wireless phone company or other. The joke of the ad was that every time the Dishonest Wireless rep said anything, he mumbled a disclaimer in rapid-fire legalese. Not true of Beacon of Probity Wireless! So if you're tires of the disclaimers, you should try Beacon of Probity's new Special Plan . . . You get the idea. So what comes after the final pitch for switching to Beacon of Probity Wireless? Yes, the rapid-fire, legalese disclaimer.

When I read the Times, I'm always looking for the disclaimer. The chinese wall between reporting and editorial functions about as well as the chinese wall between consulting and accounting at Arthur Andersen did.

Bracketology: It was a day of mixed results for me, with the only bit of wisdom being the Manhattan pick (which apparently everyone else saw coming as well). Depaul beats Dayton (will my boys ever win a first rounder?), the Salukis come up short, and I'm blindsided by Nevada beating Mich. St. Hopefully today will go better.

I'm awful at these brackets and only get in to make watching two weeks of basketball slightly more interesting because of the gambling. I'm too swayed by sentiment. My Final Four this year? UConn, Kansas, Wake Forest, Texas. I think at leat two of those have been in my Final Four every year for the past decade. Oh well, picking Duke is like rooting for Microsoft. You might win, but you don't exactly look clairvoyant. So I'll keep plugging away and hope my Dream Four comes together this year.

I Love This: The New York Post, the most entertaining paper in America by far, decided to try for some Matalin/Carville-style sparks by setting up political opposites as blind dates. They set up two couples: one was Boy Republican meets Girl Democrat; the other was Girl Repulblican meets Boy Democrat. The idea is good enough on its face, but some of the quotes from participants are priceless. Boy Democrat:

I'm a vegetarian and there wasn't much on the menu that hadn't been living or breathing at some point. She had very rare lamb. To be honest, though, I wanted a bite because it looked delicious.

Funny stuff. I'll have the hairshirt with my metrosexual, please.

Girl Republican:

We talked about how we both came to think of ourselves as Republican or Democrat. He was at the Whitney [Museum], so I think he was exposed to the left there.

Think?

Boy Republican:

We started off talking about where we are from. She talked about how much she dislikes Bush and wants him to be voted out. I told her how, basically, that's not going to happen.

Mmmm. Guess who didn't get luck that night.

Girl Democrat:

I found it a bit dismaying that someone could be so extremely conservative at such a young age.

More: On reflection, I don't think I talked much politics with my wife (that's Mrs. Enobarbus) until well after we were married. A wise move, as it turned out. It's much easier to drop a loopy boyfriend than a loopy husband.

Thursday, March 18, 2004

Manhattan/Picks: Actually, after writing that, I walked down to the lobby of my building to have a smoke and saw the score on the tube. At that time they were up by about 10, fairly late in the game. It could be coincidence. Or it could be My Year of Triumph.

Either way, I refrain from laughing in the face of your Team of Destiny nonsense. (Last time I did so, your Team of Destiny ate my lunch in the AFC Championship.)

I've never had a problem picking against Duke. If you lose, you're a brave contrarian unswayed by the appeal of the Blue Menace. If you win, you're a genius who knew that Duke was always hollow at the core of its evil machine. Win-win, baby.

Eno will take Manhattan.: Interesting dark horse pick seeing as how it just beat Florida - I wonder if you back-dated your timeline on the post. I'll put Flyer on the case.

I am absolutely no good at winning the bracket. This year a co-worker and I went in together on a bracket, but given how well he and I do at managing a fantasy baseball team, I'm not any more optimistic.

But, because we all must do it: My favorite dark horse is Air Force. A perennial loser, hasn't won its conference in forever and this year the team is like 22-8 or something. Just unprecedented. I like them into the Elite Eight. I take Wake over St. Joe's (my local pride just ain't enough), but like the Zags over Ga. Tech. I also like Wisconsin into the Quarters - I'm partial to the Big Ten given my roots, but still, they show some real moxie. CW is that Duke ain't for real, but how do you vote against them, even though you're dying to? I have them at the Final Four, but losing to UConn, who is my team of destiny, even though it's not a daring pick. Although if Okafor's back doesn't improve, that destiny thing must succumb to reality.

NCAA: I hate this time of year. After paying little attention to college ball for months, I feel compelled to pick four teams, if only out of pure force of habit. In college (at a perennial also-ran for the NIT invite), it was an absolute, a ritual. My roommate would make a huge blowup of the brackets to hang on the wall, on which he would make copious notes, record scores, and write down mysterious phone numbers -- such as that of a certain "Uncle Louie." Like someone who lives with a devoutly religious person, I learned certain phrases, magical incantations, and the hoops equivalent of last rites when 400 clams was on the line, UNLV was on a tear, and Louie wasn't about to let you roll your losses into the next round . . . again. (As someone who had previously confined his money-losing activities to cards, ponies, and tech stocks, it was a very strange feeling, at least for this cat, to pick a team for the final four, only to be betting heavily against them several nights later, based on a choky near-loss against some ridiculous play-in team.) Anyhow, I've managed to strike a balance between picking sentimentally and realistically -- go long enough to keep it fun, stay short enough to have at least one of my teams stay in beyond the first round -- based on little actual love for college basketball (though I admit its superiority to the pro version) and zero practical knowledge. Pick, then enjoy the side action.

Enough. My picks: Kansas; Cincinnati; Pittsburgh; Maryland.

A couple of sentimental picks: Seton Hall over Duke in the second round; Georgia Tech over Gonzaga in the St. Louis regionals; Wake over St. Joe's in the Jersey regionals; Dayton over UConn in the second round. Total dark horse to win it all: Manhattan, Princeton. Top seed most likely to get bitch-slapped: Duke, if there's a god.

Wednesday, March 17, 2004

Terrorism as head cold: The fundamental differences between our approach and the Euro-weenies' approach to terrorism is, as Eno has delved into below somewhat, caused in part by what each side views the cause to be.

The Euro-weenies (hereinafter the "EUW" or ewwww) think that poverty, disenfranchisement and (again to borrow from Eno) the price of goat cheese cause terrorism. There is a hint of truth in that concept because if everyone was living it up in Monaco, it would be hard to find someone willing to strap on a satchel of C-4. But I'd suggest that poverty and its cousins only make it easier for the message to spread; they're not the cause itself. We view terrorism as being spawned by radical hardliners who only want power for themselves, but they dress it up in tones of nationalism and religious fervor, or they just blame it on the jews.

So, EUW thinks that if they play nice, give away more free healthcare, and subsidize labor, farms and exports, oh and turn their head away from every bit of terrorism that occurs elsewhere, then they'll have solved the problem, or in any event, be left alone from making the hard decisions.

But, if we compare today's terrorists to the Nazis (and there's no good reason not to), we see that while the messenger is buying into the message, the author is only buying more Mercedes or bad art. Meaning the creator of terrorism only cares about himself and his own skin; not the so-called jihad.

Terrorism is the disease, everything else is just a carrier or a symptom. So, to get rid of the disease, you don't focus on anything else other than destroying the genetic make-up of the pathogen so that it can't spread and eventually withers away. While any good doctor must treat symptoms to alleviate the pain, he or she knows that it's just a temporary fix. The Spaniards have chosen Advil over an antibotic. They figure if the fever and aches go away for a few hours, then they must be all better. What they fail to realize is that they have the Plague, and those black boils developing under their own arms are about to kill them - perversely and sadly - again.

Terror and Europe: I'll be blunt. I get the feeling that, up until last week, the whole "war on terror" thing was something of a parlor game in Europe. It was fun to joke about unsophisticated Americans, just cowboys really, seeing things in black and white. Blah, blah, blah.

Our reaction to 9/11 was outrage, anger, giving rise to vengeance. I'm more convinced than ever that the general European response, though veiled in "Nous sommes tous Americains" bullshit, was really more like, "Well, you did have it coming to you, after all." I say this because, now that large-scale terrorism (as opposed to assassination and violent demonstration, IRA style) has struck Europe, the tone has changed entirely:

EU President Romano Prodi took this lesson from Madrid: "One thing is clear: things will only start moving when we have resolved the conflict between the Israelis and Palestinians." A non-sequitur for the ages, or simply a strategy of mouthing the words of fanatics? After all, scratch an Arab nationalist and you'll find someone who thinks the high price of goat milk, the heartbreak of psoriasis, and the dictatorial nightmare of a government he's saddled himself with can all be cured if only we could get those cursed Jews off the back of that great friend of peace Arafat.

Freshly minted Spanish PM Zapatero said: "Fighting terrorism with bombs, with operations of 'shock and awe', with missiles, that does not combat terrorism it only generates more radicalism . . . The way to fight terrorism is with the rule of law, with international legislation, with intelligence services . . . This is what the international community should be talking about." Oh. In other words, let's return to doing whatever it was we were doing back when these folks were only attacking America. Zapatero has formulated the tall dandelion principle for a new generation: Walk quietly, don't draw attention to yourself; maybe you'll get the part of Vichy France in the next global revival of that old classic Freedom versus Fascism, and avoid being cast as Poland. (In a fit of typecasting, Poland will no doubt get that role again. She plays it so well and, frankly, I don't see anyone in Old Europe with the stomach to handle the demands of the part.)

I won't even bother to quote from Chirac and Schroeder's bunny hug, in which they declared war on everything but cliches about terrorism (root causes, economic dislocation, and all the rest of that stuff: no doubt you've noticed the other economically dislocated populations around the world crashing jets into tall buildings).

Of course, some root causes are more equal than others. Item: "Chirac backs Mubarak in opposing US plan for Arab democracy"

French President Jacques Chirac backed Egyptian counterpart Hosni Mubarak in his opposition to a US initiative for political and economic reform in the Middle East, saying the plan amounted to "interference."

The wearin' o' the green: Michael Graham gives a timely refresher on John Kerry's confusion about his roots. Who can blame him, though, for wanting to be Irish? Just remember, John, never substitute rice for the potato.

T.O. in da House: So, the Eagles, one of the more conservative, buttoned-down teams in the No Fun League, bring into the fold one of the most outspoken, selfish, yet terribly talented and determined players to ever play the game.

Early on, even before the free agency filing fiasco, the CW on TO was that there was no way Andy Reid, a monotone mormon, would ever agree to coach such a flamboyant and at times, mutinous, player. Then we start to hear of how much Andy and TO saw eye-to-eye at the pro bowl games (Andy has coached the last three by virtue of being the losing coach in the NFC championship), and that despite their disparate personalities, the leadership in the team (both players and management) would keep him under control. Well, it's an interesting theory.

What is clear is that Eagles took a hugely aggressive stance in the free agent market and nabbed two of the arguably top 3 or 4 free agents available. As we have seen in places like Washington, big names and salaries does not always equate into big wins, but when you look at the Iggles, they had two glaring problems - no consistent pass rush, and their receivers couldn't get off the line much less get open, thereby causing McNabb to get crushed. Well, no more excuses and the Iggles get a free pass through and including the first game from criticism.

The legal theories being batted back and forth concerning his contract were also interesting. As it stands, it looks like not too many teams are going to be eager to deal with Donohue of the 49ers, nor will too many players want to sign with such management.

Tuesday, March 16, 2004

But First: Before launching into the politics of Spain's awful week, I should have posted my earlier thoughts. Having been away for a few days, I didn't get the chance to say that I feel for them terribly. Last week we were all Spaniards, and I mean that quite seriously and not in a condescending, French kind of way. Tragedy is tragedy, no matter who they picked in their election. I happen to think they picked a defeatist socialist. (And Zapatero doesn't seem to protest either description.) But I understand the conflict of emotion that suffuses their country now. On September 11th, I dialed two New York phone numbers, cell phones, until I thought the buttons would wear out. One belonged to a friend who worked in the financial district. He called safely from midtown, later, on his long walk home amid chaos.

The other number belonged to a friend who had been downtown to pick up his girlfriend. He didn't find her until that afternoon (she had been among those who sought escape on the Hudson ferries and ended up in Hoboken and Weehawken, watching the smoke rise from across the river). He called that night, drunk and pessimistic.

There was no personal tragedy for me; my friends were safe. But I remember the emotions welling inside me as I called again and again, hearing only emptiness or "no service" messages. I was frightened; I was angry. Who the hell knows whom I would have voted for a day or two later? Bush wasn't exactly a pillar of leadership in those first few days.

That was more than two years ago. Today I wonder about my friend Cynthia Rodriguez, who lives in Madrid and who tried to teach me how to say the "d" in "Madrid" like a native.

It's worth noting, and many have, that Spain is still occupied territory in the Islamist mind. I disagree with those who take the lesson that Madrid was bombed because of Iraq. Yes, Madrid was bombed because those who wish to hurt America cannot (at least not right now, though they wait for our guard to drop again), and thus Spain became a surrogate target. But others have pointed out that Turkey, after rebuffing U.S. entreaties for strategic aid in Iraq, suffered bombings just the same. In this conflict, the grievances are too old to be parsed neatly. In Istanbul or Madrid, 1918 or 1492 might as well have been yesterday for all the safety it buys them. Ataturk or Ferdinand might just as well still be in power for all the enmity they still inspire.

So I hope for a change of heart among the Spanish, and I hope their new PM will pause before he takes his country out of an alliance that, I think, is the only hope the West has.

Required Reading: The always-insightful Robert Lane Greene wonders if Al Qaeda just won it's first election -- in Spain:

It is still not too late for the incoming Socialist government to deny Al Qaeda an election victory: The Socialists must under no circumstances pull Spanish troops out of Iraq by the summer, as they said they might do during the campaign. If they do not break this promise, they will be allowing Al Qaeda to dictate policy outcomes in a democratic country--which will surely encourage further attacks in democratic countries, especially those that were part of the U.S.-led coalition in Iraq. The Socialists have a right to their views on the war. But they also have an obligation to the community of free nations, all of which will suffer the consequences if Al Qaeda believes it can use bombs to play electoral politics. For the moment, that obligation trumps the promise the Socialists made to Spanish voters.

I'm not optimistic.

More: Any doubts that this is clearly Al Qaeda's plan will be ended here:

"We think the Spanish government will not stand more than two blows, or three at the most, before it will be forced to withdraw because of the public pressure on it," the al Qaeda document says.

"If its forces remain after these blows, the victory of the Socialist Party will be almost guaranteed -- and the withdrawal of Spanish forces will be on its campaign manifesto."

(As Sullivan says, "If it worked in Spain, al Qaeda might surmise, why not try it in the U.S.?")

Friday, March 12, 2004

The best part of this is that the "experts" assumed that the flight recorder couldn't possibly be from the downed flight because it was in such good condition. Like it was too much effort to simply plug in some headphones and listen to the first thirty seconds.

Wednesday, March 10, 2004

Supremes to decide gay marriage?: From MSNBC [forgive the lack of block-quoting - just easier to read]:

Q. What indication has the U.S. Supreme Court given that it might decide that marriage between homosexuals is a right protected by the U.S. Constitution?

In their ruling last June in Lawrence v. Texas, a five-justice majority of the court struck down state anti-sodomy laws, deeming them a violation of the Due Process Clause of the Fourteenth Amendment.

(Justice Sandra Day O'Connor concurred in the ruling but used different reasoning, saying anti-sodomy laws violated the Equal Protection Clause of the Fourteenth Amendment.)

The language of the decision implied that the liberty protected by the due process clause included the liberty for gay couples to get married.

Although the question of marriage itself was not squarely before the court, the majority opinion, written by Justice Anthony Kennedy, is significant in indicating the future direction of court's rulings.

You stare up at me every day from my keyboard. Granted, you're not assembled yet, but I see you nonetheless. You taunt, you wiggle, you laugh. You revel in your power over me just as Delilah did when caressing Sansom's long, flowing locks - checking for just the right place to snip. "Come on big boy," you lilt "you know you want me. Here I am. Use me."

You lie in wait for the opportune moment. Maybe I'll need to describe a recent sporting even to a friend. You know the one where my favorite team suce--succesf--sucessf--scored the final goal in a winning fashion? Yeah, there you are again. And what's up with the "two-c, two-s" thing? And what's with the hard "c" followed immediately by the "s" sound in the middle where only two c's reside? You defy logic, you defy memory, you defy the very concept which you embody.

Were it not for multiple taps of the backspace key (seemingly the only one able to rein you in), my pages would be littered with pieces of you. Your incomplete formation reminding me of all my failures; my inability to complete what I start.

So, I'm done with you. I'm moving on. I'm ready. You're not all that no more. From this point forward "triumph" is my boon companion. We shall triumphantly march together towards our goals, checking off each accomplishment (with triumphant aplomb) as we go by. Others shall comment in wonderment: "Who is that man who cuts such a triumphant figure?" Like the Romans in Carthage, I shall sow your once fertile soil with salt, rendering you barren for ages to come. "Success", meet "failure".

Democratic Money: Down toward the bottom of this piece on erstwhile Democratic candidates fundraising for Kerry, this paragraph shows up regarding the last important holdout:

Several officials familiar with the discussions say Dean is prepared to endorse Kerry soon, campaign for him and ask his own campaign contributors to donate to the Massachusetts senator. His actions depend on the course of the conversation between the two men, these sources added, saying it's unlikely Dean would be willing to turn over his donor list.

A couple of things are worth mentioning here. First, Howard Dean is proving (as he warned he would be) reluctant to share his long list of contributors. Why? An eye toward 2008, perhaps? Even someone as odd as Dean must realize that his shelf life isn't that long. A cabinet post? That could be a sticking point. Howie has gained a reputation for shooting his mouth off, not being a team player, and burning his bridges with the other candidates, to say nothing of his ability to burn through stacks of money with nothing to show for it -- not the first things you look for when picking, say, the next HHS secretary (although the last of which is what you usually end up with).

Second, assuming accomodation can be reached, what does this vaunted Dean's List have to offer John Kerry? Dean has put the touch on them so many times, he likely closed off quite a few general election prospects. Besides, these donors opened their wallets mainly because of Dean's outsider appeal. His campaign was premised on the notion that he was not an insider -- that he was not, to be precise, John Kerry. Remember that last year, Dean shot up in the polls mainly at the expense of the presumed favorite, Kerry. Why young, disaffected Democrats would now shell out yet more cash, and to the very man they rejected in favor of Dean, is a question that needs addressing. Lacking a convincing argument to the contrary, I think Dean's donor rolls are basically a white elephant this year.

Don't worry, it will taste just as good as those Atkins bars: Pepsi, not daunted by such stellar products like "Pepsi Clear" and "Pepsi One", has decided to put another nick in it's soda line with "Pepsi Edge". Half the sugar and carbs. Here's what a "soda analyst" has to say:

"This is a huge and major development for the U.S. beverage industry," said John Sicher, editor of industry journal Beverage Digest. "It represents functional innovation in carbonated drinks and responds to the key consumer issues of calories and carbohydrates."

Boy, I'll say!

Anyway, the sodas are trying to do what the beer companies are doing with beer - and the beer companies can't do it fast enough, to wit:

Pepsi's move mirror trends in the beer industry, where Anheuser-Busch Cos. Inc. has found a winner with its low-carbohydrate Michelob Ultra offering. Adolph Coors Co., which has seen its Coors Light brand suffer because of Michelob Ultra, recently introduced its own low-carb offering, Aspen Edge.

Coke is promising its own lower-carb soda too...my bet is that it's "edgy".

Tuesday, March 09, 2004

Still More Jobs! Nice links, Flyer. I was just speaking about this subject over the weekend (with a Kerry-backing liberal we both know and love -- let's call him Elmo Reese), specifically about structural versus cyclical job losses. Here's the article I found most informative on the subject, by Clive Crook in National Journal. (No permalink, so hit it soon.) It seems to fit with the Investor Insight piece, which also quotes the NY Fed and makes many of the same points regarding skills and re-training that Elmo made.

Well, I hate to sound like a broken record, so I won't belabor the argument yet again (go here, here, and here to have the dead horse soundly re-beaten), but the current level of unemployment represents a structural shift from an aberration, a historical blip during which we had employment figures that typically only accompany a hot war. Employment will slowly work its way back to historical levels (and, as I've said, 5.6% is pretty damn close to what was, historically, "full" employment). Meanwhile, the GDP growth and productivity growth we are seeing are good things, particularly combined with low interest rates and low inflation. This economy is, by reasonable standards, humming. It's not a jobless recovery; it's a return to normalcy.

More: Kudlow hedges a touch, by playing up the payroll survey/jobless claim differences, but ends up agreeing.

Stern: Julian Sanchez has a post up at Hit & Run on the Howard Stern slow-motion debacle. I think he's summed things up fairly nicely. It's of course not in violation of the First Amendment for Clear Channel to dump Stern; however, the FCC can create a "chilling effect," a de facto hostile environment for those who rely on free speech for their living. (To wit, even Rush Limbaugh has defended Stern.)

It's worth remembering that the infamous Hollywood blacklists of the McCarthy era were not mandated by some big brother appendage of the federal government. Rather, they were employment decisions by private companies, free to hire whomever they chose to write and direct movies. But are we able to recognize, at a distance of fifty years, the environment in which these decisions were made, and the political and economic consequences that followed from them? It wasn't illegal, but it was cowardly, and it emphasized the root problem: Because of the implication of intervention, the concentrated attention of the government is, in effect, a basilisk's stare.

Jobs:Radley discusses state hostility to business as an important factor in job losses/creation, on NRO today.

For further analysis of the jobless recovery, I recommend John Mauldin's Investor's Insight page. It's long, and references some long pieces from places like the Bureau of Labor Statistics, but it's an interesting take. Short version: these weren't cyclical jobs that were lost in the 2000-2001 recession, but permanent ones which are harder to replace. Unfortunately, there's nothing President Bush or candidate Kerry can do to affect the situation before November, and not much more to do after the election.

More jobs!The Man Without Qualities looks at historical revisions of Payroll Survey numbers and warns that George W. might be a vicitim of the same bad numbers that helped Clinton oust his Papa.

If the recovery is and remains "jobless," it is possible President George W. Bush might not be re-elected, as happened to his father in 1992. But it's worth noting that after that election, the revised 1992 employment numbers were better than had been thought. Payroll employment was initially reported to have risen only 423,000 during 1992, - but that number was later revised to 1,157,000. That made for an average of 96,417 per month during 1992 - in contrast to the average 35,250 per month thought to be the case while the campaign was being waged. It would be an irony for George W. Bush to succeed in avoiding all of his father's mistakes, but nevertheless failing to be re-elected because the Department of Labor statisticians had not failed to avoid the mistakes of their predecessors from 1992. Life is not always fair - but irony in politics always comes cheap.

Social Security Addendum: Stephen Green brings up a point that I ignored in my recent post on Social Security. Whenever the debate on Social Security turns to the fact that the "trust fund" financing the future of the program is full of nothing but IOUs from the Treasury, the folks who use phrases like "lock box" in their arguments say things like this:

To say the funds are not real is to say the benefits can be withheld because taxes that have been paid are not "there." This is absurd. In titles to wealth, there is never any "there." There are relationships regulated by law. You buy a share of IBM, the law says you own a piece of IBM. The law says that taxes in excess of expenses in Social Security, plus accrued interest, have been loaned to the Federal government.

The short version of that argument is, "Social Security will get paid for. After all, the government isn't going to default on those IOUs." Yes. That's exactly my fear.

Monday, March 08, 2004

My score: I rated a 50, though I'm expected to become more extreme. I don't see how, as I anwered every question by trying to formulate a libertarian argument I could live with for every proposition. There might be a few I'd waffle on, but if I made the anti-libertarian choice on an item I meant it, no take backs. But my category of "soft-core libertarian" is one I'd agree with.

Razor's right about privatizing every last government function - it'd be confusing as hell and who wants to write that many checks every month? And who wants all the freeloaders who won't pay for police protection? How do you know if the guy getting mugged is late on his payment and you call for a cop anyway? Who gets the bill, there? At some point the government becomes the most efficient actor, even if they're still making some inefficient decisions.

Update: looked at few of the commenters on Radley's site, and sheesh, talk about hard-core libertoids. Government may be an annoyance, even at its best, but "inherrently evil" is a bit strong, don't ya' think?

Gas Prices: Coincidentally, I was thinking about this over the weekend, in response to one of the many stories on "record gasoline prices." Gregg Easterbrook takes down that misinformed boilerplate in his TNR blog.

Last week the national average for regular unleaded was $1.71, while "the record," USA Today declared, was $1.74 in August 2003. But all that matters to consumers is inflation-adjusted cost, and in this real-dollar calculation, gasoline prices remain about where they have been for most of the postwar era . . . The current gas-price level that Spencer Abraham, Dan Rather, and others are hyping as close to "the record" is actually 39 percent lower than the true price peak.

Perhaps this is why I remain pretty sanguine about fuel costs, despite a commute that amounts to over 600 miles per week. I don't think the cost I pay for gasoline is disproportionate to its value to me. At any rate, failure to adjust for inflation is a rookie mistake that Easterbrook is right to call out. On the other hand, none of this excuses the machinations of OPEC or the technological (and cultural) backwardness of numerous oil-exporting nations. If any reasonably stable, generally free-trading Western nation had the kind of oil reserves of a Saudi Arabia or Venezuela, gasoline would be about $1.00 per gallon -- most of it taxes. (I'm betting that any serious reduction in the price of petro-products would be partially offset by rising taxes, on the theory that the market can bear it.)

That brings up a final point. When discussing the "record" price for gasoline, one can't ignore the tax burden. I don't have the figures, but I don't suppose the taxes on gasoline were higher in the 1950s or 60s, were they? The better comparison (lacking the tax data, which I am too lazy to find right now) would be inflation-adjusted prices of crude (here, indexed to 2000), which still ignores technological advances, but bypasses the taxes built in at the pump.

Score: Heheh...I was a 17. Part of the problem (as with any quiz) is the way the questions are worded. These were particularly black-and-white, which makes sense given the slant. My score just barely puts me in the "soft-core" arena. I can tell you towards the end, I answered "no" to just about everything ("Cut this in half, cut that in half"). Kind of absurd.

Things like free speech are easy (well, for me at least). I even was for vouchers because I find efficiency and competition in schooling the only way to solve the problem (as opposed to more money). But privatising money, courts, military, fire, etc. I find too disencfranchising and likely more complicated than the system we already have. Just loook at one service that we pay for privately - insurance. Now car insurance works pretty well - factors like where you live, the car you drive, and your record add up to a premium. Then look at health insurance - fiasco for all involved. Oh, and throw in all those who can't afford insurance.

Now, picture privatizing the police department. Picture the most stereo-typical inner city block you want. Now imagine those people don't or can't purchase private police because, gee, their premiums would be sky-high. If the state doesn't do it, no one will.

I suppose you could make the argument for privatized fire service (the banks or landlords would blend the fees into mortgages or rent), but too much of the quiz was really unrealistic in my opinion - but I suppose that's why you can score in the 60-100 range and still be only medium- to high- as opposed to absolutely devoted to the cause.

Well, that's spot on. I'm consciously aware of how I deviate from the hard-line; though I'm perhaps still evolving in that direction. Part of that is because this quiz, like others we've seen, asks binary questions. That is, sometimes I'd like to answer a question, "No, but . . ."

I'm rather curious to see where you fall on the scale, Razor, since you come at the question of freedom from a different angle. I would guess that Flyer is not far from where I am -- though I may be wrong.

Polling Kerry: John Ellis makes the point that Kerry polls even with Bush (or ahead, but within the MoE) -- after a mostly patty-cake primary.

The Opinion Dynamics/Fox News poll is up. It's not good news for Senator Kerry. No one has said a negative word about him in four months and the best he can do is 44 percent.

This is worth remembering. Kerry's negatives will never be this low again. His positives will likely never be this high again, save for a few twinkling moments following his nomination. Bush is a known quantity, and whatever Kerry says about him, the voters have heard it (and worse) before. Kerry is the unknown quantity, the stand-in for the "generic Democrat" in the poll questions a few months ago. Everything indicates that this is still Bush's race to lose.

You go, Hugo: Hugo Chavez, in another showing of just how far out of it he's become, threatens a "100-year war" if the U.S. tries to meddle with his wildly successful nation and its sovereignty. Yeah, we wouldn't want to mess up that whole socialism thing - really paying dividends right now. Assuming we'd even care to "invade" what makes him think he and his "friends" could stop us? Okay, if he cut off the oil, we probably would invade, but that would take, what, about 3 days (two of those just to get everybody over there).

The Rules: I didn't mention this, thinking it was just a minor fuss on a slow news day:

The Bush/Cheney campaign's first three TV ads were barely on the air Thursday before families of 9-11 victims, firefighters and some of President Bush's most vocal political opponents were demanding that two of them be withdrawn.

Today those groups plan a press conference in New York to say that the ads' use of video shot at the World Trade Center on Sept. 11, 2001, is insulting to the memories of those who died in the 2001 attacks.

Oddly, this issue was still among the big stories in the news today, and Bush is taking it seriously enough to round up his own group of 9/11 victims and families to defend the ads. But what are the rules here, anyway? I don't see any reason for this to be off limits. After all, the big networks used plenty of 9/11 footage for their own "We brought you there" news promos.

Over the weekend, I finally saw the ads. They're extremely tasteful. Unimaginitive and virtually content-free pabulum, but tasteful.

Saint John: Here's the first example I've seen of the great media suck up: WaPo's featurette slugged "Kerry Dots Deliberation With Decision." The story gives only a quick, passing nod to Kerry's reputation for "wanting it both ways" on many issues (although this story spins it as indecision, only briefly noting that his critics see it as political posturing, not some righteous crusade to get all the information before deciding); from there, the story is a puffy, anecdotally based refutation of the criticism. This is old-fashioned water-carrying journalism at its best.

The only thing I can think of that comes close on the other side of the aisle is Bob Woodward's series in the Post (from his book) on the White House after 9/11. But in that case, every meta-media talking head on TV went out of his way to point out that Woodward has a reputation for trading puff for access, and that his "version" should be taken rather skeptically.

Friday, March 05, 2004

Late entry: Love the weekend song topic, and Eno's covered many from my youth (it's like you were there, man!). I'll add another that hits all the right notes, though not technically a "weekend" song. "Five O'Clock World" by The Vogues, though I have a version by Hal Ketchum.

But its a five oclock world when the whistle blows
No one owns a piece of my time
And theres a five oclock me inside my clothes
Thinkin that the world looks fine, yeah

Tell me that doesn't move you. Hal even throws in a little yodel on the end of the chorus that I don't recall from the original. Sets me free.

Purrrrrr: Well, Eno, you are at least making this writer's Friday a great deal brighter as you bring to mind the dulcet tones and glorious harmonies of The Bangles. I didn't want to overplay my love for the band (and how can one, really?) by bringing up the greatest weekday song ever, but you knew how to pierce me to the core. Just consider the juxtaposition in the song: "Just another manic Monday...woaaaoohhhaoohhhhh...wish it was Sunday...woaaaoohhhaoohhhhh...'cause that's my funday...."

Elton: Funny, I was going to mention that one, along with Triumph's "I Live for the Weekend," as one of the atrocities. As for post-weekend songs, don't forget "Manic Monday." Now, who did that one again?

Weekend Wonders: Funny post. Couple more coming at ya!: "Saturday Night's Alright (For Fighting)" - the Taupin/Elton composition which is one of the more straightforward of their songs ("Don't give me none of your AGGG-ravation, we had it with your discipline..."). Or, how about a little revolution on your weekends to go with your coffee and paper, with "Sunday, Bloody Sunday" by U2?

Then when the weekend is over, you only face dread, i.e. "Rainy Days and Monday Always Get Me Down" - The Carpenters. Truer words never sung.

Friday's Lazy Slow News Day Pop Music Post: John Kerry could endorse Mel Gibson's deicide fetish flick today and I couldn't blog about it. Dear god, do we really have to spend eight months with these two insufferable hacks, Bush and Kerry?

Having always been an unabashed fan of pop music, I have a soft spot for that particular category of awful song: the weekend song. You know the drill. Knucklehead millionaire musician tries to connect with you working stiffs by singing about his "job," his "boss," etc. On Friday afternoons of my youth, DJs across the country lined up these evil gems like missiles in a Moscow May Day parade. (They may still, for all I know.) Some of them are memorable just for being bad. Others are serious biscuits.

The most calculatingly fake-a-loo populist of the lot was artiste-cum-producer-to-the-stars Todd Rundgren's "Bang on My Drum." (Todd redeemed himself, though, by recording the self-deprecatingly hilarious "Emperor of the Highway.") The most common was likely Loverboy's "Working for the Weekend." I hope those guys invested heavily and well in pharmaceuticals (and I mean Pfizer and Merck, not reds) and are now living comfortable lives with no thoughts of a comeback. The enduring lesson of pop music is: Yeah, it was cool for a while, but please go away now. (Meatloaf. The prosecution rests.)

The Easybeats are exceptional for hitting this category twice (three times, in a way; read on). "Friday on My Mind" is a staple of Friday radio, and "Good Times" rides the same rail. And "Good Times" made a return twenty years later, covered by INXS with Aussie mad-dog screamer Jimmy Barnes. (That their locomotive-pace reading of the song channels a bit of AC/DC is fair enough. AC/DC producer George Young [Angus and Mal's big brother] was an Easybeat.)

You'd likely have to wait until Sunday night to hear it on Vin Scelza's show, but Tom Waits's "Heart of Saturday Night" is worth mentioning, since it hits all the thematic elements established by Sam Cooke 40 years ago with "Another Saturday Night": pocket full of money, cruising the streets, looking for a little, er, companionship.

Who would've thought that the Cure could produce one of the best of the genre? Might as well wait for Morrissey to sing about a sexually and emotionally fulfilling relationship. But "Friday I'm in Love" makes you think that perhaps there's one day on which Robert Smith isn't brooding in his bedroom.

And how much flack would I get for this one (if anyone read this blog, that is)? "Saturday Night," by the Bay City Rollers, was a fine, fun song, though you won't hear it on the radio. It's a fickle medium, and it's surely a point of pride now to trash such twee puff. But Joey Ramone famously loved it, taking it as inspiration for "Blitzkrieg Bop."

Thursday, March 04, 2004

Three cheers for the sleaze machine: Easterblogg is handing out kudos to porn studio Vivid Video for not portraying violence and sex together, like a crack dealer who won't buy a teenager a twelve pack of Bud. He contrasts this with mainstream studios who turn out "irresponsible" movies like "Scream" and "Natural Born Killers," movies whose violence has a detrimental effect on the culture and may even lead to Columbine-like tragedies.

I'm glad Vivid limits itself to porn movies that portray happy couples, threesomes, etc. getting it on in every conceivable way, ending every scene with smiles on their faces, but I'm not going to stand up and cheer because they've adopted the slogan, "Vivid Video: We Don't Make Snuff Films." Gregg argues that porn movies are actually empowering to women because they're better paid than the irrelevant men in the movies and they have more artisitic control than women in traditional studios. I'm no prude, and I have no desire to see John Ashcroft go on an anti-porn crusade (at least not while the life and death matter of athletes on steroids is unresolved), but it's certainly wrong to pretend that an industry that exists solely to objectify women has no destructive impact on those women or society at large. Movie violence is what they call in the industry "pretend" and the women being slashed are actresses who go home at night having not been filled out like an application by a dozen guys that day. I doubt very seriously that she'd trade places with some chick bending it over for Vivid.

Back to CFR: The issue that wouldn't die. We hashed this out pretty thoroughly way back when, but it continues to surface. Here, David Tell of the Weekly Standard goes hunting for substance in the legislative-judicial-regulatory thickets of campaign finance governance. Things are awfully confusing, numerous erstwhile "crusaders" have switched sides on soft-money regulation, and the Democrats have fully woken up to having shot themselves in the foot with the McCain-Feingold pistol they were twirling with such apparent dexterity a few short years ago.

The soft-money regulation is not the most constitutionally troublesome part of CFR, though it is proving to be a nightmare to implement. (The restriction on all third-party advocacy within 60 days of an election, to me, was always the grossest example of stifling speech.) Still, I hope some strong lessons are being carried away from this. The foolish (and bipartisan) belief seems to be that political advocacy can be effectively regulated, if only we can tweak the wording just a bit more. Hear me on this: The regulations could be 6 pages or 60,000 pages long; it doesn't make a difference. The only inroads made are on what you are free to do with your money. The parties and the 527s can afford staffs of full-time lawyers and regulatory experts gaming the system and stretching the loopholes. What've you got?

I'm not lovin' it: The following is definitely not in reaction to the lawsuits and negative press; okay? Got that? NOT: McDonalds is removing the "supersize" option from its menus. The real reason is that it reduces the number of buttons that employees need press, which makes their already over-taxing job much easier. You know, removing all those buttons...like the one marked "supersize" -- yeah, that one.

Tuesday, March 02, 2004

The over/under: The number seems to be 5.6, as in 5.6% unemployment, nationally. Tim Blair suggests through a rather amusing analysis of news reports that unemployment that deviates upward from this figure by as little as 0.1% can be seem as a "jump", and a similar deviation downward a "fall". These words of course depend on who is the president at the time. Plus that 5.6% is seen as either "low" or somewhat alarming again depending on the Oval Office occupant.

There goes the neighborhood: More National Guard units are being put on alert, including the 256th Infantry Brigade of Louisiana. A friend of mine is an officer in the 141st Artillery, which accompanies the Brigade, and he made it sound far more certain that they were going when he called yesterday. Sometime in May, was the closest he could come to a departure time, and said he's been told to be prepared for up to a year and a half deployment. I think that's probably unlikely, and probably includes the next 3 months of drilling and preparation. Either way, I hope Baghdad is ready for a huge headache. Not from the artillery, but from the highly vocal drunkenness that accompanies the 141st every time I've ever seen two or more of them together.

Should they, in fact, deploy, I've been promised plenty of "man in the sand" interviews and insights, which I'll post here.

Oscars: I didn't watch, so if I missed anything shocking or interesting in the telecast, forgive me. I was cheering for LOTR: ROTK and was glad to hear that it won. Eno may be a little jaded by the "post-Lucas world of bloated, slightly ridiculous trilogies," but I thought each of these movies was fantastic. Lucas' Star Wars downward spiral of vapidity is even more awful when it stands next to a work of fantasy that doesn't treat every viewer like a child even when they're making pretend. As for "Oscar worthy," I think the bar was forever lowered by Titanic and ROTK cleared it with no trouble.

Lost in Translation and Master and Commander were both very good films, but neither one engaged me like ROTK. "Lost" was just a little too narrow in scope for a Best Pic winner and "Master" lacked the love story that Oscar insists upon (and Peter Jackson tossed in as a bit of a sop to the Academy). I didn't see Mystic River or Seabiscuit (I think the latter was thrown in purely to give Billy Crystal plenty material) but it seems most of the accolades had to do with the performance of Penn and Robbins, who each won in their own categories.

Oscars - I like your turn-of-phrase for Mystic River. It was a bit in-your-face about the emotions it demanded you feel. Still, I think Penn was well-deserved. He is simply levels above the rest. The ending was screwball, but I'll forgive it. Robbins was creepy, which was the point, but hard to say whether it was a virtuoso acting job. Kind of like a "Rainman" deal there. Still Susan Sarandon is way hot. I'm in love ... again.

For LOTR, I disagree somewhat of your characterization that this film wins only in the post-Star Wars era. I think LOTR compares more accurately with Ben Hur in terms of spectacle. Yes, Ben Hur was more character-driven, and clearly focused more on a couple actors as opposed to the ensemble that was LOTR. Still, having read all the books and seen all the movies, it's hard to imagine a better telling of the story on the screen. Jackson simply nailed it. He gets all the Oscars this time because it was the last one. I don't think Return of the King was all that better than Fellowship (although it was better than Two Towers). This was the recognition for the whole kit and kaboodle. Too bad for the rest of the movies, really. Master and Commander was another incredibly well done adaptation of a series of books with a cult following.

Haiti - I guess it was something to be happy about for all those Haitians to see Aristide gone, but now what? In a few days the euphoria will wear off and it will be time again to focus on jobs, health, and safety. None of those things are likely to get better short-term -although the aid packages will likely start flowing in. I assume Aristide had his financial planner working on an exit strategy for some time and that the 1% skim off of GDP will keep him in good stead in whatever 3rd world country he ends up.

Lyle Lovett: The New Yorker profile shows the face of a Texas conservative -- which I mean non-politically. He still lives in his grandparents' old house, across the way from his mother, in the town where he grew up.

"My great-grandpa's barns were built in the eighteen-seventies, and when we fixed them up, for me that was a real proud accomplishment," Lovett went on. "I understand everything has to change, but all my life I’ve been interested in preserving the old stuff."

. . . We stood quietly for a moment, then Lovett broke the silence, saying pensively, "Progress is the hardest thing for me to accept."

Brevity: A lot to talk about, obviously. Haiti, the Oscars, and Iraq's constitution are all getting big play right now, but I'm pressed for time this week. Briefly:

Taking the first and last together: So, Haiti loses another corrupt ruler. I'm more hopeful about the future of Iraq, and partly because the UN has been so effectively sidelined there.

Mystic River was a forceful movie, but upon reflection I find it seeming more and more like emotional pornography. Lost in Translation was a better film. I didn't see Return of the King, but it strike me that it is Oscar-worthy only in the post-Lucas world of bloated, slightly ridiculous trilogies.

Speaking of which, I watched a bit of Phantom Menace last night while I folded laundry. The movie suffers comparison's to the first one (i.e., Episode IV), but only because these are children's movies. And we were kids when the first one was released. As for quality, though, the dialogue is equally inane; the plot is at once nebulous and baroque, and requires olympic suspension of disbelief; and the ponderous pacing makes John Ford's epic drag seem like speed-cut, Jackie Chan fare.

Friday, February 27, 2004

Thank goodness for my pseudonym: If you're going to make me commit, then here's my "feeling" on the matter. I think that homosexuality is not a basis to restrict marriage. Why does it make a difference as to the sexual orientation or gender of those who get married? It can't be about procreation (there's not obligation to do so when married and may married couples can't reproduce). It can't be about religious beliefs, because that can't be a basis for the government to deny or permit.

No, marriage is about stability. We believe that when people are married, it helps stabilize our world. It fosters stability in property, in family, and in social relations.

Those against gay marriage can't really espouse a reason why the government shouldn't sanction it without bringing in religious beliefs. They can speak about "preserving our heritage" all they want, but gay marriage doesn't disrupt hetero marriage or its traditions - it only adds another group to what we have now (with that current group not being altogether successful at it in any rate).

Those opposing the issue don't want more members into the club because then they can't look down on those on the outside. They become too similar - and nothing like familiarity to breed contempt. As long as they can exclude the homos, the heteros can remain superior. Just like with the race laws that are slowly dying, so too will the anti-homosexual laws. The same exact arguments are used; which boil down to: "it doesn't seem right." And by the way, I don't know that I'd apply the "Rational Basis" test to this issue, but that's another post.

I would restrict the right to marriage to some though. Murderers, child-molesters, and rapists come to mind. If marriage is about liberty (so says Warren) then take some more liberty away from those who don't deserve it.

Don't punish a group of individuals that have produced some of the most breath-taking art and literature (not to mention inventions and ideas) the world has ever known just because they reject your idea of sexuality. They have every right to every other liberty we bestow upon mankind (we even so graciously allow them to create life and adopt) except the right to express their commitment to one another in a way that is legally recognized.

Preserving anachronistic ideals is not the basis for forming government policy. Otherwise, bring back slavery, by all means. I have some projects at home I'm too busy for.

Razor, as usual your commentary is brimful of informative fact, not to mention ridiculous example. But your opinion on the matter (which seems to boil down to "Puh-leeze") leaves me feeling a bit empty. Are you trying to avoid a paper trail? (That federal judgeship may be coming, but I'm convinced I can put you in the Senate well before then.)

Your comments indicate that you are not in the first of the three groups you describe (marriage not a universal right; restriction wholly constitutional). I don't think you'd show up in the second group (man/man marriage as good as man/woman; man/woman/man or man/aardvark worth considering). That leaves only the yawning chasm that you call "the middle ground" (marriage is a right; rational basis restriction okay). Lots of wiggle room in that place. You getting advice from John Kerry's team on this?

Loving you is easy 'cause there's a rational basis for it: My apologies to Minnie Riperton, but I can't help myself. Also, I hate you Eno for making me try to remember my Con Law courses. But here goes:

First of all, Warren used a couple of analyses to make up his mind. The one that gets short shrift, but from which Ms. Ridenour's favorite sentence ("Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.") comes from is under the Due Process prong. Warren equates marriage to "liberty" (oh god, the amount of jokes that can come out of that), which was denied to the Lovings on the basis of race. Persuasive? I think not. I mean, you can make the argument, but you'll notice that not even Warren really tries.

The Equal Protection analysis is more to the point. It is worth re-stating that when we engage in Equal Protection analysis, we are looking not at the conduct engaged in (typically), but the people engaging in it. To use my favorite rhetorical device of assuming a ridiculous example, imagine someone wants to play hopscotch, but some town has a law in place that only blonde people (good for me) can play hopscotch on public property. Some firey red head then files suit saying the government is restricting her ability to engage in the god-given right to play hopscotch. The courts then have to find whether (a) hopscotch is a "right" and then whether (b) there is some basis (whether "rational" or of a more heightened variety depending on the class of person involved) that the government can rightly use to support its law. Note that the "rational basis" test is almost always a win for the government, Loving notwithstanding.

Currently the debate is about the institution of marriage, or the right to marry. It seems everyone in the various branches of the federal government is of the opinion that marriage is the right of all rights, second only to the right to commit sodomy. The issue then is whether marriage is universal to all citizens, and if so, if there still might be a reason to restrict it to certain peoples.

Buying into the premise then that marriage is a "right", we need to take the next step. The one side of the argument will say that "marriage" is a right not universal to all citizens, and therefore, you really don't need to get into an argument over why you're restricting it. The Rosies of the world say that everyone has the right and that as such, you can't deny it to anyone. The middle ground would be that it's universal, but there can be compelling reasons to deny it. This is where the courts are likely to find themselves. But once you do that, and if, you buy into it being a universal right, I think the argument for exclusion falls apart (I mean, we let convicted felons marry - assuming it's boy/girl). Then you get into this justification that only heteros "deserve" marriage; or that we must preserve the historical sanctity of marriage. Puh-leeze.

The buzz phrase now is "let the states decide", but that leaves out the fact that "civil union" is of limited value if it's only valid in the state of inception. Being married gives the pair quite significant property rights, and if they can be easily disregarded in another jurisdiction, you are indeed making gays second-class citizens.

Equal Protection Update: As I noted, Amy Ridenour at the NCPPR has responded to my post on equal protection. She begins with a valid point; admittedly, I don't really know where Earl Warren would have stood on gay marriage. That was gratuitous hyperbole, and I apologize for it. (But I do think I have an argument, so read on.)

More to the point, she says:

I can't conclude that Warren disagrees with what I posted online. Warren argued that banning marriage between the races had no rational basis. He didn't argue that all restrictions on marriage are irrational or unconstitutional.

Fair enough. I also agree with her that Warren was addressing race exclusively in his Loving opinion. I may or may not agree that Warren would withhold his reasoning in Loving from the same-sex marriage dispute; that much certainty is lost to the silence of the crypt.

I do, however, think that Warren would have joined me in disputing Ms. Ridenour's original claim that

. . Every American of legal age, excluding some deemed mentally incompetent to fulfill a contract, is treated the same by our marriage laws.

I think this because he rejected that argument in Loving v. Virginia. As I demonstrated previously, every Virginian was treated equally by state anti-miscegenation laws. But Warren rejected the notion of equality put forth by Virginia, which he summed up this way:

Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.

Thus do I draw some analogy between Ms. Ridenour's statement of the rules of equality

We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone of the opposite sex.

with my own paraphrase of the pre-Loving rules using a formally similar presentation

We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone [of our own race]

Because homosexuality is not covered explicitly by the 14th Amendment, I don't think Warren could have put forth the same argument for strict scrutiny that he used in Loving. But it is fairly clear that he rejected the notion of equality put forth by the state of Virginia -- a notion that has logical parallels in Ms. Ridenour's construction.

Note, further, what Warren said, and Ms. Ridenour quotes:

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

But a close reading of the 14th Amendment shows that this protection in no way extends exclusively to race:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The upshot of all of this? I still don't know how Warren would have ruled in a hypothetical same-sex Loving. But the old bat was full of surprises, as Ike found out the hard way.

Finally, to Ms. Ridenour: I had never been to the NCPPR site (or the blog) previously, but you've won yourself a new reader.

Stern the cash cow: As a footnote to my first post, the radio station I worked with who carried Stern wound up dropping him because it was only marginally profitable at best, and not worth the hassle. This was in New Orleans, which, despite its Mardi Gras reputation, is a rather conservative place in many respects, so there were some protests, never very big, but annoying nonetheless.

Now take a look at the cities where Stern got the boot.

The stations where the Stern show is carried by Clear Channel are in Fort Lauderdale, Fla., Orlando, Louisville, Pittsburgh, Rochester, N.Y., and San Diego.

Not exactly Stern country, I'd guess. I think CCC is trying to score cheap points with Big Uncle, while canning Stern in markets where the financial impact is negligiable. I'm not upset by the censorship angle, both of you have covered that nonsense, but by the hypocrisy of Mark Mays, who once stood at my desk giggling like a 12 year old while we listened to "the rising tide of indecency on the airwaves..."

Clearly Channeling Pat Robertson: Let's face it, going after "indecency" is just easy. It takes almost no effort to build up big headlines and it lets certain politicians pretend that they take tough positions on tough issues. It distracts people from things they really should care about because when you mention "censorship" in this country, everyone goes nuts. As Eno makes clear, "censorship" is when the government does it. When anyone else tells you to shut up it's something altogether different.

Clear Channel cares about advertisement revenue which is why it and all the other stations carry Stern - he's a cash cow. Clear Channel is only now pulling Stern for the same thing he's been doing now for two decades because Clear Channel must have some reason to fear that in our neo-neo-Puritan climate (all because of one weird looking breast in Houston), advertisers will pull their money out. Yes, the government has no doubt put intense pressure on the stations, but the government does this in a regular cycle. Note that MTV is already back to its old ways after promising to "clean" up its act. Oh, and to get meta about it, note that MTV is owned by Viacom, which in turns owns Infiniti Broadcasting which in turn owns K-ROQ where Stern is headquartered.

The fact is the government can't force Clear Channel to do anything unless it brings out the FCC Handbook and starts playing whack-a-mole. Therefore, I'd have to say this isn't real censorship, only a business caving into the government's behind-the-scenes pressure - i.e. making a business decision that it's better to play nice than stand up for something as silly as free speech. It doesn't chill me as much as it aggravates me. Plus, it doesn't mean Stern can't say what he wants, just that he can't say what he wants on certain radio frequencies in certain locales. If he's put in jail for it, then you start to worry.

I agree that the Janet Jackson stunt was stupid and inappropriate given the circumstances. It caused way too much discussion over an issue that the Europeans got over a hundred years ago if not more. Our country cares more about sex and drugs than it does poverty and violence - why again? Because they're easier to make noise about and pretend you're doing something about them, even if you fail time and time again. Our politicians take the easy way out and we let them. Yawn.

Bush's Political Calculus: Democrats say Bush is using FMA as a wedge issue. Ryan Lizza wonders if Karl Rove could possibly be that dumb, considering that polling shows that the public breaks in favor of the amendment little or not at all. Lizza cites one of the polls that shows the public opposed.

Far from being a brilliant wedge issue, the poll shows Americans oppose the Bush amendment 48 percent to 41 percent. Americans still strongly oppose gay marriage by more than two to one, but all the presidential candidates share that position. Once the debate is changed from legalizing gay marriage to fiddling with the constitution to ban gay marriage, there is no obvious Republican advantage.

Moreover, what Bush has said on the matter has been much more nuanced than anyone expected even a month ago:

The country has shifted far to the left on this issue in a very short period of time. We've leapfrogged over the nascent debate about civil unions and moved right on to gay marriage. A few weeks ago many Democrats warned that Howard Dean was unelectable because he signed a civil unions law as governor of Vermont . . . [Now] Bush himself says he would leave civil unions legislation up to the states, tacitly endorsing Dean's decision in Vermont.

This is true enough, as is Lizza's conclusion:

Speaking to reporters early in Bush's term, Rove argued that the biggest problem in 2000 was not that mushy moderates abandoned Bush, but that four million white evangelical protestants stayed home. Bush isn't trying to peal [sic] off conservative Democrats so much as he's trying to rev up his base.

But he fails to connect the dots back to his previous point about the whole issue moving left. If Karl Rove is thinking anything, he's thinking about finding the absolute minimum Bush can do and say to secure his base with this issue. Gavin Newsom's flauting of state law in California gives Bush an excuse to bring this up early, making sure it's off the table at the convention; say that he has done his part (since the president has no role in the amendment process); and get back to safer issues.

The nation's largest radio station chain took shock jock Howard Stern off the air in six markets, saying his sexually explicit show did not meet the company's newly revised programming standards. The move came on the eve of Thursday's congressional hearing on broadcast indecency . . .

Yes, Clear Channel is a company with the full right and responsibility to decide what to put on its air. But that's not what's happening here. The government is behind this. The government called broadcast chieftens to the woodshed and they came back vowing to avoid further government censure. Mel Karmazin of Viacom, owner of Stern's station, held a conference call threatening to fire DJs, program directors, and general managers who are even the subject of complaint. The government tried to put a chill on speech. And it worked. And that should chill you.

Lileks is at the other, in elephant-gun irony mode (powerful as hell, but awfully inaccurate over distances):

We need to coarsen public discourse as much as possible as quickly as possible, because a free and open society depends on the right of Pink to flash her labia at the next Superbowl. I'm serious: if we don't see a clitoris on the Jumbocam, this nation is OVER. (Breast, labia - what's the diff? Please don't tell me you're one of those bluenoses who thinks a boob's okay but explicit gyno topography is somehow unsuitable for prime-time. It's the HUMAN BODY, people; what's your hang up?)

I have to come down on Jeff's side here. I think the FCC and Mikey Powell are pushing really, really hard right now. I think the folks at Clear Channel would broadcast amplified, reverberated spaniel farts 24 hours a day if they thought a goddamn nickel was in it for them. That sets up a conflict, and I think radio is knuckling under. Here's what Glenn says:

It's hard for me to get too exercised about this. I'm opposed to censorship, but Stern was "censored" by his employer.

Look, I have no problem with an employer censoring an employee either. None of my business. But making offensive remarks is quite obviously the business Howard Stern is in. Viacom knows it. Clear Channel knew it. It's not as though the guy has been doing Andy Griffith schtick for the past 20 years. So what, other than massive federal pressure, could have caused Clear Channel to adopt its "newly revised programming standards"? I think this smells rotten enough to to get worked up about.

Clear Channel Communications knocked Howard Stern's radio show off stations in six cities yesterday as the nation's largest radio chain announced a crackdown on "indecent content" on its 1,200 stations. Clear Channel executives were responding to a segment of Stern's Tuesday broadcast in which they say he used sexually explicit language and graphically discussed a pornographic videotape.

I didn't hear the show (it's not available here, anyway) but I'm pretty familiar with his typical content. I worked for a Clear Channel station for several years and one of our sister stations carried Stern for much of that time. I had to hear it every morning at work, while having coffee and talking to clients on the phone, which made for the occasional spit take, to say the least. I can't imagine that anything unprecedented was said in the interview, and if a "racist (unspecified) word" was used, is that really grounds for booting him off the air? It was a caller, after all, who used the word, not Howard or one of his staff. But it's just too much for CCC president John Hogan.

"Clear Channel drew a line in the sand today with regard to protecting our listeners from indecent content, and Howard Stern's show blew right through it," Hogan said.

No, Mr. Hogan, it looks like Howard walked the same path he usually does, and you snuck up and drew a line behind him.

Wednesday, February 25, 2004

Urban Outfitters: The story behind the company (Urban Outfitters) which is behind that remake of the retro t-shirt is actually pretty interesting. Unfortunately I can't find an on-line link to the story from Philadelphia Magazine, but it goes something like this. The store begins its life as a thrift store in Philadelphia created by two hippies who get married. The whole concept is free love and nearly-free clothing. Nothing designed or marketed, just a place to get get used clothing and other paraphenalia (it wasn't a head shop, so no implication here).

Well, the store starts to get a head of steam, and at some point, the husband and wife part ways. The husband becomes a Republican and a successful business man employing hundreds while selling over-priced clothing that only kids between the ages of 14 and 24 can wear. Wife remains true to her activist roots and opens a very successful but vegan, charity-donating, cause-espousing restaurant. Wife shakes head at what has become of husband. Husband shrugs and says he's just living the American Dream and not everyone can live in the 70s.

Meanwhile, the store has grown and grown and indeed thrives on selling crap but crap with ironic labels and sayings. It's in many cities now. Run.

When the Germans and Italians team up...:...bad things are bound to happen. Well, "bad" in this case will depend on your a) degree of interest in F1 racing, and b) whether you think the Ferrari/Michael Schumacher dynasty is a good thing (kind of like the Yankees run of World Series championships and appearances for those of you whose interest in automotive sports is limited to NASCAR).

To also put it in perspective, Schumacher's lap time being one-second better than his next competitor (and breaking the track record while doing it) is kind of like Lance Armstrong having ten minutes on the second-place guy. Granted, it's only the time trials, but ye gods!

Equal Protection: Amy Ridenour (president of the National Center for Public Policy Research) has a good response to Sullivan's claim that the FMA would violate equal protection:

Speaking of Andrew Sullivan, he writes this (2/17): "...under almost any rational understanding of equal protection, civil marriage has to be extended to gay couples."

. . . Sullivan's statement relies on an improvable and unsound assumption, that is, that there is a class of people who are inherently separate and distinct from other people based simply on their announcement of a preference, even a temporary one, for sexual relations with a person of their own gender.

. . . Every American of legal age, excluding some deemed mentally incompetent to fulfill a contract, is treated the same by our marriage laws. We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone of the opposite sex.

Equal rules. Equal protection. Anyone who wants to follow the rules of marriage can marry. Anyone who doesn't, doesn't have to.

Damn, she must have clerked for Scalia! Like I said, it's a good response, but it steals a couple of bases. Go back to the Loving v. Virginia post below and plug her scenario in there, like this:

We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. And, yes, we must marry someone [of our own race]

Equal rules. Equal protection.

See what I mean? Nice try, Amy, but Earl Warren disagreed.

More: I forwarded this to Amy Ridenour for comment. Nothing on her blog yet.

More: As a sidenote, who pays 28 clams, plus S&H, for that shirt? I'm certain I had a shirt just like it in 1977 (but with whatever slogan was trendy at that time; "Ayyyyyyyyyyyy," perhaps?). Probably didn't cost more than $3.95 -- even adjusting for inflation.

The Democrats' frequently touted "lock box" idea is a sham, and they know it. Meanwhile, the most aggressive privatization proposal that the president has talked about amounts to the privatization of a no more than a few percentage points of the whole megilla. Even in boom times, this wouldn't save enough money, and the savings wouldn't come for generations, since no politician will stray from the opinion that benefits "must not be touched," particularly the payoff for the benefits-hungry demographic leviathan called the baby boom. Back to Greenspan:

"Tax rate increases of sufficient dimension to deal with our looming fiscal problems arguably pose significant risks to economic growth and the revenue base," Greenspan said. "The exact magnitude of such risks is very difficult to estimate, but they are of enough concern, in my judgment, to warrant aiming to close the fiscal gap primarily, if not wholly, from the outlay side."

In other words, finance tax cuts with spending cuts. Heresy, in Washington, even for a Republican. It took the GOP a while to figure it out, but you can get yourself elected by giving people stuff.

Gay Marriage and Loving: But does Loving v. Virginia apply here? (Warren in fact wrote that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." But that is, on its face, not true.) The court held that a man and woman of different races could not be prohibited from marrying. The difference, obviously, is that the Loving couple consisted of a man and a woman -- it was, ironically, what we might call a traditional marriage. The decision simply removed race as a factor. In other words, Loving (like Lawrence) overturned a law found to have no rational basis (Warren: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification").

Has gay marriage ever really been criminalized (not counting the Defense of Marriage Act, which seems rather toothless to me), or has it just not been allowed? I wonder what the difference is. Nevertheless, there was no Massachusetts law for the SJC to overturn; thus, they had no authority to proceed as far as they have. Had they overturned a statute criminalizing gay marriage, I think I'd feel a little better about the whole thing. In other words, I think some of my uneasiness about the issue boils down to judges giving orders to legislatures.